Dispute arises: What is an agricultural use?


By KAREN BARTOMIOLI


 

CORNWALL — A plan to open a horse manure composting operation atop Cream Hill has hit a snag. An appeal of a Planning and Zoning decision was hand-delivered to Town Hall last week. It will send the matter to the Zoning Board of Appeals (ZBA).

The request to deny permission for a Sweet Peet production site was filed by Cream Hill Road resident Kathleen O’Flinn. Her husband, Peter O’Flinn, told The Journal it was prompted by concerns shared by several neighbors.

The Sweet Peet process turns manure contaminated wood shavings from horse stalls into a high-priced mulch using a large-scale composting operation. While property owners Ralph and Charlie Gold advised the Planning and Zoning Commission in writing that they planned to keep horses and cows on the former Cream Hill Farm, much of the composting material is expected to be trucked in from off-site.

They had planned to lease about 3 acres of land set back from Cream Hill Road to the Sweet Peet company. Compost will be piled several stories high on the site. Ralph Gold told The Journal previously that those piles will be set behind a grove of trees, but could still be visible from the road.

The site is not part of the acreage recently put into a conservation easement.

The Planning and Zoning Commission determined the operation would comply with zoning regulations and does not need a special permit.

Zoning Enforcement Officer Karen Nelson is dealing with the mechanics of the appeal process, which includes making copies of the inch-thick document and notifying town attorney Perley Grimes. It will begin with a public hearing. But a date will not be set until Grimes returns from vacation after this week, and has a chance to review the appeal.

The hearing is likely to be held July 27. The ZBA has a standing meeting date on the fourth Monday of each month, but meets only if there is a pending matter.

Officials at Town Hall, who have been fielding comments, said they have heard from about as many people in favor of the project as opposed. And many of them are not passive in their support, but are furious that an effort to re-establish an agricultural use is being challenged.

That seems to be the two-fold crux of the matter. Opponents do not want the appeal to be seen as disrespectful to the Gold family, or to create animosity among neighbors.

But they question the determination that this is an agricultural use, or an accessory use to a farm, and want a chance to look at the issue in more depth.

Ralph Gold told The Journal this week that there has been some progress and that more meaningful conversations have now opened up with the neighbors.

"We never anticipated that this would upset people. Some of what people have been concerned about is based on misinformation," Gold said. "This is really a much lower-key operation than what people are finding online about other composting sites. We may well work this out in some good open discussions."

Gold said the site is close to being ready for operations to begin. Rain has held up preparations, and work continues to move forward slowly. He noted that without the need for a permit from the town, the operation cannot be halted by an appeal.

The Planning and Zoning Commission has issued only a driveway permit, after coming to the conclusion that the project is allowed as an agricultural use.

"I have the highest respect for the Golds and everything they have done for Cornwall," Peter O’Flinn said. "I just believe this is properly something that the Zoning Board of Appeals should look at."

The Planning and Zoning decision, O’Flinn said, seems to fly in the face of an opinion it sought from its own attorney. He is also concerned that a Department of Environmental Protection (DEP) permit, which essentially limits the scope of the operation, is being construed as oversight of all impacts; yet it will not address concerns such as truck traffic.

A May 28 letter from Planning and Zoning attorney Steven Byrne, of Byrne & Byrne in Farmington, stated that Cornwall’s zoning regulations do not define composting as an agricultural use of the land.

According to Byrne, the local regulations define "farming" as the "raising of agricultural products." Byrne cites case law that further implies farming by that definition means the growing or nurturing of living things.

"From these definitions, it would be within the sound discretion of the commission, to find that the production of compost is not a permitted use of land as the primary use of that land because it is not a living thing."

He went on to advise the commission it needs to consider whether or not the plans fit the definition of an accessory use. He quoted from the regulations the definition of an accessory use as, "A use or structure which is subordinate to, and is used for purposes customarily incidental to, those of the principle use or structure on a lot."

Byrne addressed the raising of horses and cows on the farmland, as spelled out by the Golds, and wrote that, "The fact that the manure and bedding will be trucked in from off-site makes little difference in making the determination whether this composting use is accessory to the farm."

Scale of operation would be the determining factor, Byrne wrote. Although the DEP can limit the amount of material that can be brought on site, Byrne expressed the opinion that the Sweet Peet project could be a growth business and could eventually need its own permit; it has the potential, he said, to "expand to the point where it is no longer compatible with the area."

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